Shoving aside last night’s Republican debate, which I’m sure was the usual crazy salad, I want to say a little more about the situation at my alma mater, the University of Missouri. As I wrote a couple of days ago, I have no doubt the campus is a genuinely hostile place for black students. And I have no doubt that the examples of racist incidents given in news stories are just the tip of a huge iceberg. I’m sincerely glad the students’ protests got some tangible results.

However …

The student organization behind the protests, #Concerned Student 1950 — 1950 is the year the university began to accept black students — managed to screw the pooch by trying to physically evict journalists from their gatherings, in public space on university grounds. The incident that got everyone’s attention involved a senior at the School of Journalism named Tim Tai, who had gotten a freelance photography assignment to cover the football team protests from ESPN (good for you, Tim!). As he patiently tried to explain to hostile protesters that he had a First Amendment right to report on public demonstrations on public property, an assistant professor of media (NOT part of the School of Journalism) named Melissa Click actually tried to grab Tai’s camera and then yelled “Who wants to help me get this reporter out of here? I need some muscle over here!”

(I was seriously relieved to learn that Click is not a J School prof. When I was a student at the J School, covering the news any way we could was considered a sacred duty.)

In the video of Tim Tai trying to carry out his ESPN assignment, I see the most vivid example yet of activists twisting the concept of “safe space” in a most confounding way. They have one lone student surrounded. They’re forcibly preventing him from exercising a civil right. At various points, they intimidate him. Ultimately, they physically push him. But all the while, they are operating on the premise, or carrying on the pretense, that he is making them unsafe.

Not all of the news stories about this have explained that Tim Tai is also an undergraduate student at the University of Missouri. It’s not just his public space; it’s his campus. Do go to Friedersdorf’s column to see the video and read his blow-by-blow description. I cringe whenever righties dismiss progressive demonstrators as thugs, but in this case the demonstrators were being thugs.

Do we need to review the Bigger Asshole Rule, people? Let’s do it, for the record.

The Bigger Asshole Rule

Effective demonstrations are those that make them look like bigger assholes than us.

It’s important to be clear how mass demonstrations “work.” Demonstrations should be viewed as a form of public relations. The point of them is not to somehow intimidate or change the minds of the people you are protesting. The point is to win public sympathy to your cause. Demonstrations can also be tools for organizing, among other things. But demonstrations are a dangerous tool, because they can just as easily work against you as for you.

The really great mass protest movements — the prototypes are Gandhi in India and Martin Luther King in the civil rights movement — “worked” because the public at large sympathized with the protesters. The protesters behaved in a way that demonstrated they were worthy of respect, and the Powers Than Be they were protesting — whether redneck southern sheriffs or the British Empire — behaved like assholes. Eventually it was public sympathy – not the protests themselves — that forced the Powers That Be to step down.

In short, if your demonstrations don’t win public sympathy, you are shooting yourself in the foot and hurting your cause more than helping it.

At Missouri, the football team created a financial leverage that spoke louder than the demonstrations, but this is very unusual. Most of the time when people demonstrate in public it’s because they have no other leverage.

So now that we’ve reviewed the Bigger Asshole Rule, let’s go back to the University of Missouri. Charles Pierce wrote,

There’s now a lot of cheesy posturing going on regarding an encounter between a photojournalist named Tim Tai and an assistant professor of mass communication named Melissa Click. Tai was trying to cover the student demonstrations at the University of Missouri and Click went apeshit at him. This immediately made Tai a hero to anyone wishing to discredit what the students at Missouri accomplished over the past week. Rod Dreher was beside himself, which certainly is at least one too many Rod Drehers. The gang at Breitbart’s Mausoleum For Chronic Unemployables stamped their little feet in outrage. And other, lesser fauna joined right in. For his part, Tai seems baffled at being in the middle of this, and good for him. If he can resist the temptation to conspire in his own martyrdom, he will be a better person than most of the people who are claiming to be his champion. …

… Tim Tai was doing a job of work. He should have been allowed to do so without interference. He also should have been allowed to do so without being turned into a cudgel to be used against the people whose protest he was trying to cover. Welcome to the world, Tim. Hang in there.

See, this is what happens. Certainly there’s nothing #Concerned Student 1950 could have done to make the likes of Drehers and the Breitbrats like them, but even in Missouri there are some reasonable people whose sympathy is still up for grabs. #Concerned Student 1950 will need that sympathy going forward, if they’re going to win any battles with the troglodyte state legislature. It’s unlikely they will get that sympathy.

BTW, Click has issued an apology to Tim Tai. Yesterday the journalism faculty met to discuss revoking Click’s teaching privileges in the J School; she was not a J School professor but apparently taught a class there now and then. She resigned her own privileges before that was decided, however.

Righties do love their First Amendment rights, but they don’t understand them very well. For example, on the Right it is commonly believed the right to freedom of speech includes a right to not be disagreed with. (This is something I’ve written about before, so for examples, see “This Is Rich,” and “America Has Lost Its Mind.”)

But no, dear ones, it does not. The free speech part of the First Amendment protects you from government interference of your speech. For example, if you own a newspaper, and a government agent drops by every day to decide what stories and editorials you can or cannot print, that would be infringing on your rights. However, if the mayor of your town publicly complains about your news coverage, but doesn’t try to stop you from covering news as you see fit, that is not an infringement on your rights.

By the same token, government cannot tell you what to say. If a government agent came to you with propaganda and demanded you print it in your newspaper, you would be within your rights to say no, I won’t. Bwt this is another point often lost on righties. For example, for years conservatives in several states have been passing laws that determine what a physician must say to a woman seeking an abortion, even if the physician thinks the speech is garbage and doesn’t want to say it. This, my lovelies, is an obvious infringement on the physicians’ right to free speech, but so far several red states have gotten away with it.

U.S. case law has long recognized that “speech” is sometimes non-verbal, so that opinions expressed in gestures or art, for example, enjoy the same protection as editorials and speeches. For this reason, courts have long recognized that burning a U.S. flag in protest of some federal government policy, as offensive as that might be, is protected speech. Even so, conservatives have wanted to make flag burning illegal or unconstitutional for years. By the same token, you can count on conservatives to be first in line to stop the display of arttheydon’tlike. Conservatives have issues with academic freedom, also, and want to control what is said in classrooms. (Note to rightie readers: forcing children to recite prayers in a public school classroom is an infringement of their right to their own free exercise of religion, never mind an infringement of the establishment clause.)

Freedom of speech is not absolute. You cannot drive around in your neighborhood at 2 a.m. blasting your political opinions through a megaphone, for example. There are limitations on the display of pornography. Graffiti and naughty words may get you fined. But on the whole, speech is pretty much a free-for-all here in the U.S., as it should be. Expect to take what you dish out.

I bring this up because of a couple of recent episodes involving free speech rights.

Paul Guaschino was driving with an “impeach Obama” bumper sticker on his car, when another driver flipped him the bird. We assume that the other driver was objecting to the bumper sticker, which is not necessarily true, but that’s how Guaschino took it. Guaschino followed the other driver to a traffic light, and while both vehicles were stopped, Guaschino got out of his car and began to pound the other vehicle with a baseball bat. The other motorist, recognizing unhinged craziness when he saw it, fled. Police apprehended Guaschino and filed criminal charges against him.

But you have to love the irony of somebody exercising his freedom of speech, as he has every right to do, but gets enraged and violent when someone exercises theirs in response. I suppose it’s just intense frustration that, after all they’ve been told, the majority of the country doesn’t agree with them and actually thinks they’re jerks.

But of course, the usual righties are cheering for Guaschino, whereas if a leftie so much as looks at a conservative cross-eyed, all lefties are goons and thugs.

But this brings me back to my original point, which is that conservatives believe freedom of speech includes protection from being disagreed with (sorry about the dangling participle). I ran into this post the other day (featuring a shout out to our own c u n d gulag!) written by a rightie blogger who believes criticism of Faux Snooze amounts to an infringement of Faux’s right to free speech, i.e., pretending to be a news organization while really being a mouthpiece for whatever agenda Rupert Murdoch is pushing this week. And the blogger thinks it is just OUTRAGEOUS that people — including President Obama — trample on Faux’s First Amendment rights by saying such things as I just said, because it’s the truth. But as gulag pointed out in the comments,

that he continues to allow FUX Noise the use of the PUBLIC AIRWAVES, to spread their stupid, ignorant, racist, misogynistic, xenophobic, and/or homophobic, propaganda!

Just like Lenin, Stalin, Hitler, Mao, Castro, Pol Pot, and Saddam Hussein, did in their Totalitarian states!

Goshen College in Indiana has banned playing “The Star-Spangled Banner” at sports events, including as a purely instrumental piece, because they think it is too violent. And naturally, rightie bloggers are righteously indignant about it. In a blog post filed under “liberals,” Robert Stacy McCain writes,

If Goshen College wishes to be even less significant than they already are, they’ve chosen a perfect path to obscurity. . . . It is pathetic that brave men died so that twerps like Goshen College’s president could have the freedom to repudiate their courageous sacrifice.

You see, in RightieWorld, the individual freedoms that brave men died for are just abstractions. You’re not supposed to exercise those rights if a majority of Americans do not approve. We are all supposed to think only conservatively correct thoughts and hold conservatively correct opinions, or else we are enemies of freedom.

For the record, I happen to love the “SSB.” Like “Battle Hymn of the Republic,” the SSB is an anthem that grew organically out of U.S. history — a poem written by an eyewitness to a historical event sung to the tune of a popular drinking song. I can imagine what Francis Scott Key must have felt when he saw the flag flying over Fort McHenry in the dawn’s early light. If you can imagine being in Key’s place that day, the words “our flag was still there” ought to give you chills.

And it’s a plus for me that the whole thing is easily within my vocal range, including the high Gs at “glare” and “free” (when singing in C major; in the more common A flat major it’s only an F flat). I own that high G. At public events I sing the SSB very loudly and pity the poor mortals who have to switch to a lower octave.

Anyway, the catch to this story is that Goshen is a Mennonite college. I don’t think you can rightfully categorize the Mennonites as “liberals,” their commitment to nonviolence notwithstanding. My impression is they are pretty durn conservative about most things.

But it does show how warped our political definitions have become, that pacifism is supposed to be a litmus test for liberalism. Historically, American liberals have been no more likely to be pacifists than anyone else. Theodore Roosevelt was, IMO, one of the patriarchs of modern American liberalism, and he was no pacifist. Franklin Roosevelt, Harry Truman, John F. Kennedy and Lyndon Johnson were all presidents who were identified as, or called themselves, “liberals,” and none of them was a pacifist.

Even at the height of opposition to the Vietnam War, I doubt the majority of protesters were pacifists. It was that war we objected to, not war in general.

NBC:

Art professor John Blosser told The Goshen News that there is much national pride at the school, but that most people aren’t going to blindly accept what the country does.

That is genuine patriotism. Knee-jerk “my country right or wrong” sentiment is not patriotism but jingoism.

NBC Sports’ Rick Chandler weighed in, saying: “I suppose we could have followed the example of the Mennonites and simply fled, giving the nation back to the British. But then we’d all be playing cricket.”

I realize it is paradoxical to say that brave men died so that Mennonites have the freedom to oppose brave men dying, but that is in fact what they did. To try to ridicule or bully the Mennonites into compliance with social norms on the grounds of “patriotism” — or even more Orwellian, “liberty” — is a betrayal of the sacrifice so many brave men made.

The Mennonites can refuse to conduct ritual playings of a song about a war if they want to, just as Jehovah’s Witnesses (and me) can refuse to say the Pledge of Allegiance out loud, and not be punished for it. This is what political liberty is.

It would be a disaster for me if the national anthem were switched from the SSB to (as many propose) “America the Beautiful,” and not just because the melody is less interesting and it’s hardly ever sung in a key that lets me show off. “God shed his grace on thee” doesn’t work for me, and I suspect the nation’s atheists have similar opinions.

Give me “o’er the land of the FREEEEEEE [trumpet flourish] and the home of the brave!” any day.

[Update: The local NBC affiliate is reporting that the developers of the Islamic Center have told Gov. Paterson they don't intend to change the location. Good for them.]

Eric Kleefeld documents that opposition to the so-called “ground zero mosque” intensifies the further away one goes from “ground zero.” But we knew that. See also Nate Silver.

I had a let’s-bang-heads-against-the-wall moment this morning when I found an editorial in the Joplin (Missouri) Globe written by some guy who lives in Tulsa, Oklahoma. He wrote of the builders of the Islamic Center: “These folks should not expect a neighborhood welcoming party.”

Excuse me? Where the bleep does somebody who lives in Tulsa Bleeping Oklahoma get off talking about the “neighbohood welcoming party”? Clue, dude: Manhattan ain’t your neighborhood.

Yesterday, in an entirely different context, Jeffrey Goldberg quoted the Babylonian Talmud: “Who is wise? The one who can foresee consequences.” That may become my new favorite saying. Applied to the citizenship question — like it or not, the 14th Amendment gave us a clear, bright line regarding citizenship:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

I can see all kinds of unfortunate consequences of making that clear, bright line fuzzier and darker. Leave well enough alone, I say.

Now, most legal experts say that because of the 14th Amendment, Congress does not have the power to deny citizenship to so-called “anchor babies.” Doing this would require a constitutional amendment. But righties are arguing no, because the 14th Amendment doesn’t say what it says. This argument was presented by none other than George Will a few days ago, and it is a tortured argument, indeed. But when I read Will’s column I didn’t have the time to research what he was saying to see if it could hold mayonnaise, never mind water.

But lo, yesterday, while researching something else entirely, I ran into a discussion of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (see also Wikipedia discussion of Wong). Wong Kim Ark was a man born in the United States of ethnic Chinese parents. At the time, the Chinese Exclusion Act was in effect. You probably remember that this barred anyone of the Chinese “race” from entering the U.S., and it denied citizenship to ethnic Chinese people already in the U.S. Wong challenged this law, and in a 6-2 decision the Supreme Court agreed with Wong, and said he was a citizen of the United States by virtue of being born here. And it seems to me there’s a made-for-television movie script in there somewhere.

Anyway, as I read about the Wong decision I realized that the dissenting argument in the Wong case is exactly the same argument being made today by Will and the Republican lawmakers.

The dissent was based on an interpretation of the phrase “subject to the jurisdiction thereof.” Will and the two SCOTUS dissenters (John Harlan and Melville Fuller) say this phrase means “and not subject to any foreign power.” In their dissent of Wong, Harlan and Fuller point out that native Americans were (at the time) not citizens of the U.S. because the Civil Rights Act of 1866 had given citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

This act became law just two months before the 14th Amendment was proposed. So, the argument is, this wording gives us insight into where lawmakers’ heads were at the time. And thus, if the parents are subjects of a foreign power, then their baby born in the U.S. is not eligible for citizenship. This was the dissenting opinion in Wong in 1898, and Will repeated this same argument in his Washington Post column. Will doesn’t bother discussing that pesky Wong majority opinion, however.

Will argues further,

What was this [the jurisdiction phrase] intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

As far as I know, the Chinese Exclusion Act was the first attempt to render any sort of immigration illegal, and it didn’t become law until 1882. Congress had passed an earlier version of the exclusion act in 1878, but this was vetoed by President Hayes. But the Wong majority decision says plainly that an act of Congress making Chinese immigration illegal, and denying citizenship status to ethnic Chinese, did not override the clear language of the 14th Amendment.

So, whether Will and the Republican lawmakers like it or not, SCOTUS already nixed their argument.

The majority opinion in Wong is based partly on English common law, which said that babies born in England are English, with the exception of the children of diplomats and children born to hostile forces occupying English territory.

In addition, at the time native American tribes were not considered subject to U.S. jurisdiction and were therefore not citizens. Another case decided in 1884 (Elk v. Wilkins, 112 U.S. 94) had declared that a native American who left his tribe and went to live in a white community didn’t automatically get citizenship, although he could be considered a citizen if he went through whatever naturalization process existed at the time and paid taxes.

Will leans heavily on the example of non-citizen native Americans to argue that the 14th Amendment was not intended to confer citizenship to babies of foreigners who happened to be in the U.S. at the time. But the Elk decision (which Will doesn’t mention, either) did not consider Indian tribes to be foreign states. A tribe was an alien political entity which Congress dealt with through treaties, but not the same thing as a foreign nation.

So, it seems to me the Wong decision — the majority opinion, anyway — more closely speaks to the circumstance of babies born in the U.S. to illegal immigrants than does the Elk decision. And I think I just blew by nerd blogging quotient for the day.

Someone in a comment suggested that we non-libertarians are ignorant and we should educate ourselves by reading the Volokh Conspiracy, a well-known blog you’ve probably heard of. So I went over there to see what the brilliant Volokh Crew had to say about the recent Citizens United case regarding the free speech rights of corporations.

So here it is, and IMO the whole thing is a tortured exercise in stacking one straw man argument on top of another, beginning with the title, “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities’?”

One especially remarkable part of the argument (See subhead 3, Nearly Everyone and Everything is Probably a “State-Created Entity.”) says,

Even individual citizens might be considered “state-created” entities under this logic. After all, the status of “citizen” is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. — the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, “citizens” are no less “state-created” entities than corporations are.

First, in theory, the government IS the people, and the House at least is supposed to BE the people, the citizens, sitting in representation, and when Congress votes to set up a program like Social Security, this is really the people through their government making something to improve the quality of their lives, not government “giving” them something. And in my mind setting up a government program to benefit people is not the same thing as conferring a “right.”

Anyway, as I understand it the argument boils down to this: if the status of citizen were taken away a person would still exist, and if the status of corporation were taken away a business would still exist. Therefore, a corporation is just like a citizen.

To which one commenter asked, “does my marriage have the right to free speech beyond the individual rights my wife and I possess?” Another asked, “Do you believe that corporations have a right to vote in state and federal elections?” (Which echoed something Justice Stevens said in his Citizens United dissent: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”)

A corporation by definition is an entity separate and distinct from its members. The corporation as a corporation can do things like enter into contracts and pay taxes, and these obligations are separate from the personal obligations of the members. So when you are talking about a corporation doing something, you are not talking about its members acting through a corporation. You are saying the corporation itself is doing it.

As I understand it, the essential legal question underlying Citizens United is whether a corporation itself enjoy the status of “person” under the 14th Amendment? The question is not whether the individual members of a corporation may be deprived of free speech rights because they are acting through a corporation.

The crew at Volokh and Reason seem both to be ignoring this, and instead are saying that individuals are being deprived of their free speech rights because their use of a corporation for purposes of free speech is restricted. But that is not really the legal issue at the heart of the case. And, anyway, government makes all sorts of restrictions on means of communication, from licensing of broadcast bands to public nuisance laws that don’t let me blast my political opinions from a super-duper megaphone to my entire neighborhood 24/7. Not that I want to do that.

Another argument they are making is that if corporations can be “censored” in political campaigns, wouldn’t that overturn free speech cases involving media corporations, such as New York Times v. Sullivan? But the Sullivan case was not about government-imposed restrictions on the newspaper’s speech, but about the newspapers’ liability in a civil suit. And since the First Amendment specifically protects freedom of the press, seems to me the press itself enjoys a particular protection no matter who owns it. But again, that’s not the real issue.

The real issue, to me, is whether We the People can determine that corporate cash is a destabilizing and corrupting influence in the election process that We, the People can choose to restrict through our representative government. But because a corporation somehow has gained the status of “person,” the corporation itself can claim 14th Amendment protection of its rights. Again, this has nothing whatsoever to do with who owns the corporation or the rights of the members.

At Five Thirty-Eight.com, Nate Silver has a chart showing a correlation between same-sex marriage bans and divorce. It’s not a perfect correlation, but as you can see, states that have gone to the trouble of banning same-sex marriage, and in particular when it’s banned by constitutional amendment rather than merely by statute, tend to have higher divorce rates.

And the state with the highest divorce rate, Alaska, also was the first to add a same-sex marriage ban to its constitution, in 1998. Heh.

The basic facts, as I understand them: The Justice Department moved to dismiss the first gay marriage case filed in federal court. The case was brought by a couple married in California, Arthur Smelt and Christopher Hammer. Smelt and Hammer brought a constitutional challenge to the Defense of Marriage Act, which says that the federal government and states without same-sex marriage don’t have to recognize the marital status of same-sex couples lawfully married in a state that provides for same-sex marriage. Smelt and Hammer argue that DOMA is in violation of the Constitution on several grounds, such as the Full Faith and Credit part.

The Justice Department argued (as I understand it; I admit this doesn’t make sense to me) that Smelt and Hammer had no legal standing to sue because the status of their marriage in California is not in question and punted the constitutional question. If anyone can explain this, please feel free to do so. I’m baffled.

There are a few defending the Obama Administration on the grounds that, while we may wish the law to be otherwise, the law is the law; see Sully. However, even Sully admits there is language in the DoJ’s brief that is outrageous and homophobic and inexcusable.

My understanding is that the DoJ is still largely infested with Bush appointees. While this is not an excuse, it might be an explanation. President Obama’s Attorney General should answer for this.

Update:Andy Sullivan writes that the DOMA brief was written by a Bush Administration holdover, which confirms my suspicion. “The harsh rhetoric, the gratuitous attacks on our relationships … they were written by someone who was given an award by Alberto Gonzales for his defense of the Partial Birth Abortion Act.” As I thought, but that doesn’t excuse the Justice Department for signing off on it.